# Walsh v. Nursing Home Care Management Inc.

> District Court, E.D. Pennsylvania · August 24, 2022

URL: https://www.frixlaw.com/law-library/cases/10403903

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 24, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10403903

## How later opinions describe it (automated extraction)

- finding no obligation for government to “formally invoke its privileges in advance of the motion to compel.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SECRETARY OF LABOR MARTIN J. WALSH : CIVIL ACTION
United States Department of Labor, :
Plaintiff, :
:
v. :
:
NURSING HOME CARE MANAGEMENT INC., et al.,:
Defendants. : NO. 21-cv-02583

MEMORANDUM

J. Kenney August 24, 2022

I. INTRODUCTION
Before the Court is Nursing Home Care Management Inc. (doing business as Prestige
Home Care Agency) and Alexander Dorfman’s (collectively “Defendants”) Motion to Strike
Assertions of Privilege and Compel Production of Withheld Documents and Information against
the Department of Labor. ECF No. 46.
II. BACKGROUND
On June 7, 2021, the Department of Labor (the “DOL”) initiated this action against
Defendants for violations of the Fair Labor Standards Act, 29 U.S.C. § 201, and for
compensation of back wages and liquidated damages for the affected employees. ECF No. 1. The
DOL asserts, among other things, that Defendants failed to pay certain employees the statutory
minimum for all hours worked, including failure to compensate for travel time, and are liable for
unpaid overtime compensation. Id. ¶¶ 7-11.
On January 18, 2022, the parties appeared in-person for an initial pretrial conference and
the Court set a scheduling order for the remainder of the case. ECF No. 18. The parties filed a
joint motion for extension of time to complete discovery and other deadlines on March 25, 2022,
which was granted on April 22, 2022, and extended the close of fact discovery to June 2, 2022.
ECF No. 35. The scheduling order was later amended to extend the close of fact discovery to
September 30, 2022. ECF No. 39.

On July 15, 2022, Defendants filed this Motion to Strike assertions of the government
informant privilege and the deliberative process privilege and to Compel production of
documents and information withheld or redacted based on those privileges. ECF No. 46. First,
Defendants contend that the DOL failed to meet its procedural requirements in properly invoking
its privileges because they must have the head of the department in charge of the matter review
the materials, provide precise and certain reasons for asserting the privilege, and identify and
describe the documents protected. ECF No. 46 at 10, 18. As to the deliberative process privilege,
Defendants identify certain documents and redactions that are not protected, or Defendants are
otherwise entitled to due to necessity and fairness. Id. at 11-16. As to the government informant
privilege, Defendants contend it does not cover certain documents withheld or redacted by the

DOL. Id. at 19-21. Defendants also contend that employees interviewed by the DOL who did not
allege the company violated the law should be disclosed so that Defendants may interview
witnesses with favorable information. Id. at 22.
On July 29, 2022, the DOL submitted its Response in Opposition to the Motion. ECF No.
48. The DOL contends that Defendants’ untimely challenge to the assertions of privilege has
waived any dispute. Id. at 4. The DOL further contends that it properly invoked each privilege
through its attached Declaration and had no formal obligation to follow the procedural
requirements argued by Defendants until its privileges were challenged. Id. at 5-6. The DOL
attached to its Response a Declaration from Principal Deputy Administrator of the Wage and
Hour Division, Jessica Looman, in support of the agency’s formal claim of privilege. ECF No.
48-1. The Declaration indicated Ms. Looman’s authorization to make the Declaration and cites
justifications for the DOL’s assertions of privilege. Id. The DOL further contends that the
requested information and documents are protected by privilege Id. at 7-11, 14-16. Regardless,

the DOL contends that Defendants fail to show the information sought is either relevant or
necessary for fairness to justify disclosure. Id. at 12-14, 17-21.
Defendants reiterate in their Reply that the DOL’s assertions of privilege remain
“procedurally deficient” and Defendants need for this information outweighs the DOL’s interest
in non-disclosure. ECF No. 49 at 6, 8, 11-15, 16-19.1 Defendants also assert that their challenge
is timely. Id. at 7. The DOL’s Sur-reply reiterates that the assertions of privilege are properly
invoked and distinguishes Defendants’ cited cases from the circumstances in this case. ECF No.
53 at 3-5.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 37 allows a party to move to compel discovery

responses, including production of documents. Fed. R. Civ. P. 37(a). “The scope of discovery is
broad, but it is not unlimited.” MDAdvantage Ins. Co. of New Jersey v. Hasiuk, 2018 WL
3328049, at *1 (E.D. Pa. July 6, 2018). “Rulings regarding the proper scope of discovery, and
the extent to which discovery may be compelled, are matters consigned to the court's discretion
and judgment.” McConnell v. Canadian Pac. Realty Co., 280 F.R.D. 188, 192 (M.D. Pa. 2011);
see also Brown v. Camp Hill, 2017 WL 3868501, at *1 (M.D. Pa. Sept. 5, 2017) (citing In re
Cendant Corp. Sec. Litig., 343 F.3d 658, 661-62 (3d Cir. 2003)) (“The scope and conduct

1 In their Motion to Compel, Defendants separate their arguments by requested material. In their Reply,
Defendants summarize arguments to apply to all requested materials. The Court will consider these arguments for
each requested material but will not repeat itself.
of discovery are within the sound discretion of the trial court.”). “[V]alid claims of relevance and
privilege still cabin and restrict the court's discretion in ruling on discovery issues.” McConnell,
280 F.R.D. at 192.
IV. DISCUSSION

A. Timeliness of Objections
The DOL raises the issue of timeliness in its opposition to Defendants’ Motion,
contending that these objections were not raised within a reasonable amount of time. ECF No. 48
at 4. The DOL alleges that the privilege log and related documents were produced in January,
yet Defendants waited until the end of June to notify the agency of any objections to these
privilege claims. Id. Due to this lengthy delay, the DOL contends that Defendants have waived
their challenge to privilege. Id. Defendants contend that this issue was raised months prior to the
close of discovery and the DOL has not made any claim of prejudice for this accusation of delay.
ECF No. 49 at 7.
The Court has discretion to determine whether an objection to document production or

assertion of privilege has been made within a reasonable amount of time. The Government
overstates the legal support for its assertion that Defendants’ objections have been waived. In
Ford Motor Company v. Edgewood Properties, Inc., the District of New Jersey found that it was
unreasonable to wait eight months to object to the method of document production, i.e., ESI
production, particularly where document production was complete, and the request would
unreasonably burden a party with re-producing their entire production. 257 F.R.D. 418, 426
(D.N.J. 2009) (“The Court is not dictating a rigid formulation as to when a party must object to a
document production.”). The other case cited is also dissimilar from the circumstances here. See
Michaels v. Rutgers Univ., 2017 WL 4536115, at *3 (D.N.J. Oct. 11, 2017) (finding lengthy list
of discovery disputes raised after the discovery end date were untimely and waived).
The cases cited have no mention of privilege. They are also distinguishable as to the
burden of compelling re-production and timeliness. Here, Defendants target categories of

documents, and frequently specify what redacted information must be produced in full.
Defendants also waited approximately five months to raise the issue of privilege, and, at the
time, there was more than three months remaining before the deadline for fact discovery.
Therefore, the Court does not find these objections waived due to untimeliness.
B. Properly Invoked Privileges
Defendants assert that the DOL failed to properly invoke its privileges because they did
not issue a formal claim of privilege from the head of the department managing this matter, after
a personal review by that individual. ECF No. 46-2 at 10, 18. Defendants quote from numerous
cases with variations of similar language supporting that procedural requirement. Id. at 18.
Defendants assert that the privileges should have been expressly invoked at the time the

information was withheld. ECF No. 49 at 8-10. The DOL contends that they had no requirement
to formally invoke the privileges until after Defendants challenged it. ECF No. 48 at 5. Since the
Principal Deputy Administrator of the Wage and Hour Division responded to Defendants’
Motion by personally reviewing the information and formally invoking the privilege by
Declaration, the DOL contends that it has met its procedural requirements for the assertions of
privilege. Id.
The appropriate method for the government invoking privilege was set forth in United
States v. Reynolds, 345 U.S. 1, 7–8 (1953), where the Supreme Court said: “There must be
a formal claim of privilege, lodged by the head of the department which has control over the
matter, after actual personal consideration by that officer. The court itself must determine
whether the circumstances are appropriate for a claim of privilege [...]”. There are numerous
cases where courts found that the procedural requirements to formally invoke privilege were met
when the invocation occurred after a motion to compel was filed. See e.g., In re Sealed Case, 121

F.3d 729, 741 (D.C. Cir. 1997) (finding no obligation for government to “formally invoke its
privileges in advance of the motion to compel.”); Chao v. Raceway Petroleum, Inc., 2008 WL
2064354, at *5 (D.N.J. May 14, 2008) (finding that while the Third Circuit “has not issued a
clear directive on when the privilege should be invoked[,]” the Supreme Court found the
privilege was properly invoked in response to a motion to compel); Perez v. Am. Future Sys.,
Inc., 2013 WL 5728674, at *3 (E.D. Pa. Oct. 21, 2013) (“[C]ourts tend to not use rigid
timeframes for the timing of a claim of privilege”); Walsh v. Elder Res. Mgmt., Inc., 2022 WL
280947, at *10 (W.D. Pa. Jan. 31, 2022), reconsideration denied, 2022 WL 572025 (W.D. Pa.
Feb. 23, 2022) (finding the DOL properly invoked the government informant privilege by
submitting a declaration from the Acting Administrator of the Wage and Hour Division in

response to a motion to compel).
Here, the DOL asserted the protections of privilege in January when it redacted and
withheld certain documents and provided a privilege log cataloguing those documents. The DOL
did not have an obligation to formally invoke its privileges in advance of the motion to compel.
Defendants were made aware of the assertions of privilege and later chose to challenge those
assertions through a motion to compel. At that time, the DOL properly fulfilled its procedural
requirements to formally invoke the privileges and did so sufficiently.2

2 The Court notes that both parties raise issues of timeliness. While both the challenge to these claims of privilege
and the formal invocation of privilege could have been raised months ago, neither party chose to pursue this issue
until now. Delays like this, though bothersome to the Court for unnecessarily slowing the progress of discovery, do
not waive any of the claims being made in this Motion to Compel or in the Response.
C. Government Informant Privilege
The government informant privilege3 is crucial to “encourag[e] citizens to report illegal
activity.” Perez v. Am. Future Sys., Inc., 2013 WL 5728674, at *2 (E.D. Pa. Oct. 21, 2013)

(citation omitted). “The privilege for communications by informers to the government is well
established and its soundness cannot be questioned.” Mitchell v. Roma, 265 F.2d 633, 635 (3d
Cir. 1959). “Further, [o]ne of the most common applications of the privilege in civil cases is in
cases arising under the FLSA and in these cases courts have generally refused disclosure.” Perez,
2013 WL 5728674, at *2 (citation omitted). “The informer's privilege is deeply entrenched in
FLSA jurisprudence in this Circuit.” Id. (collecting cases). “[T]he overwhelming majority of
courts presented with the assertion of the privilege in FLSA cases have granted it, particularly
during the discovery stage.” Id. at *3.
This privilege, however, is not absolute. Id. “The court must weigh the public's interest in
protecting both the flow of information and the safety of the informer against the defendant's

right to prepare a defense.” Sec'y of Lab. v. Superior Care Inc., 107 F.R.D. 395, 397 (E.D.N.Y.
1985). “[T]he Third Circuit has instructed that ‘the question [to be asked by the district court is]
... whether the disclosure sought by the defendants is essential to assure a fair determination of
the issues, with due regard being given to the defendants' right to prepare their defense
properly[.]’ ” Chao v. Raceway Petroleum, Inc., 2008 WL 2064354, at *4 (D.N.J. May 14, 2008)
(quoting Mitchell, 265 F.2d at 636). “The defendant bears the burden of establishing that his or
her need for disclosure is greater than the purpose behind the privilege.” Id. at *3. “A defendant's
claim that it cannot adequately prepare for trial without piercing the informer's privilege is often

3 Courts refer to this privilege as either the “informer's privilege” or the “informant's privilege.”
made and often denied in the FLSA context.” Perez v. Am. Future Sys., Inc., 2013 WL 5728674,
at *4 (E.D. Pa. Oct. 21, 2013).
Here, Defendants seek two letters sent by the DOL to informants in the fall of 2018. ECF
No. 46-2 at 19. Defendants also seek disclosure of the names of Prestige employees that were

interviewed by the DOL and allegedly confirmed that they had been paid properly, which
Defendants claim is not covered by the government informant privilege because these employees
did not provide information regarding violations of law. Id. These employees, according to
Defendants, have information favorable to Defendants and the balance of interests weighs in
favor of disclosure. Id. The DOL contends that Defendants do not explain how this information
is relevant or necessary for its defense. ECF No. 48 at 12. The DOL further asserts that the key
issues in the case – whether Defendants’ pay practices are lawful, the amount of damages, and
whether liquidated damages are appropriate – can all be addressed using facts and information
within Defendants’ possession. Id. Finally, the DOL asserts that the requested information is
covered by the government informant privilege and should be protected. Id. at 14-16.

The Court finds that the letter correspondence between the government and its informants
and the identities of the interviewed employees are protected by the government informant
privilege. One purpose behind this privilege is that it “affords DOL a better chance of candid
dialog.” Perez v. Guardian Roofing LLC, 2016 WL 1408027, at *2 (W.D. Wash. Apr. 11, 2016)
(citation and quotation marks omitted). To reveal informant identities simply because their
communications do not mirror the DOL’s allegations runs afoul of the purpose of the privilege.
To reveal correspondence that may indicate who an informant is also betrays the purpose of the
privilege.
When weighing the public interest in open communication from potential informants and
Defendants’ ability to obtain similar information from sources within their possession, the
informants’ names and correspondence should not be disclosed. The issues central to this
litigation rely upon Defendants’ own documents and records. Chao, 2008 WL 2064354, at *4.

Defendants are in a position, not only to review their own documents, but also to interview,
depose, or seek declarations from their own employees as witnesses. Id. (“[T]he knowledge
sought from [defendant’s] current and former employees—whether or not they worked overtime
hours for which they were not compensated—is just as much within the knowledge of
[defendant] as it is within the knowledge of the [] workers.”) (quotation marks omitted). There is
no justification provided that these particular Prestige employees interviewed by the government
are essential to Defendants’ claims or defenses. If the unstated justification is efficiency, that is
inadequate to mandate disclosure of informants’ identities. Id. (“a claim of efficiency on its own
is not weighty enough to overcome the public policy against disclosure.”) (citation and quotation
marks omitted).

While it is admirable that Defendants insist there is no risk of retaliation because the
informants do not allege violations of law, it is insufficient for the company being investigated to
promise not to retaliate against those who complied with the government’s request for
information, even if the substance of the information provided is not explicitly beneficial to the
government’s position. There is also no burden on the government to prove retaliation is likely or
possible so this assurance from Defendants is not pertinent to the Court’s evaluation of the
government informant privilege.
Regardless, “Defendants give no compelling reasons that their circumstances are
different than the significant body of case law that declines to lift the privilege during the
discovery stage.” Perez v. Am. Future Sys., Inc., 2013 WL 5728674, at *6 (E.D. Pa. Oct. 21,
2013). It is premature to disclose information about or surrounding the employees interviewed by
the government as part of its investigation and lawsuit against Defendants. There are no special
circumstances in this case that would require disclosure of informants’ identities or

correspondence months before summary judgment and trial. There is no need for the DOL to
urgently disclose the names of employees interviewed as part of its investigation. Defendants
assert with no support whatsoever that the “interests of justice” require the Court to
“immediately disclose” the names. ECF No. 46-2 at 22. Yet the Third Circuit promotes a more
patient approach, in which names of employees are disclosed only at the stage of litigation where
it is necessary. See Acosta v. Fairmount Foundry, Inc., 2019 WL 196543, at *3 (E.D. Pa. Jan. 14,
2019) (“[T]here is no need for disclosing the informer employees' names at this stage.
[Defendant] has not met its burden of establishing its need for disclosure is greater than the
purpose behind the privilege at this pretrial stage.”).
Even the cases cited by Defendants support a delayed disclosure, if any, of these

identities. See e.g., Walsh v. Elder Res. Mgmt., Inc., 2022 WL 280947, at *10 (W.D. Pa. Jan. 31,
2022), reconsideration denied, 2022 WL 572025 (W.D. Pa. Feb. 23, 2022) (“Cases about
invocation of the government informant privilege in the FLSA context frequently distinguish
between the discovery stage and the trial stage, and defendants’ interests in disclosure strengthen
as the case approaches trial.”); Perez v. Am. Future Sys., Inc., 2013 WL 5728674, at *1 (E.D. Pa.
Oct. 21, 2013) (denying defendants’ motion because identities were protected by informant’s
privilege and it would be premature to dictate testifying employee witnesses at discovery stage);
Perez v. Guardian Roofing LLC, 2016 WL 1408027, at *3 (W.D. Wash. Apr. 11, 2016) (finding
it sufficient to disclose the identities of the employee-informants the DOL intends to use for trial
approximately 10 days before trial and stating “the Court cannot find [defendant’s] right to a
fundamentally fair trial is compromised by the delay in releasing employee-informant
identities[.]”). Therefore, Defendants have not met their burden of proving that the disclosure of
the names of the Prestige employees interviewed by the DOL or correspondence with informants

is necessary in the preparation of their defense or to ensure fundamental fairness.
D. Deliberative Process Privilege
“The deliberative process privilege permits the government to withhold documents
containing ‘confidential deliberation of law or policy-making, reflecting opinions,
recommendations or advice.’ ” Redland Soccer Club v. Dept. of Army, 55 F.3d 827, 853 (3d
Cir.), cert. denied, 516 U.S. 1071 (1996) (quoting In re Grand Jury, 821 F.2d 946, 959 (3d
Cir.1987), cert. denied, 484 U.S. 1025 (1988)). “Manifestly, the ultimate purpose of this long-
recognized privilege is to prevent injury to the quality of agency decisions.” N. L. R. B. v. Sears,
Roebuck & Co., 421 U.S. 132, 151 (1975) (“The quality of a particular agency decision will
clearly be affected by the communications received by the decisionmaker on the subject of the

decision prior to the time the decision is made.”).
The privilege is qualified not absolute. See Scott Paper Co. v. United States, 943 F. Supp.
489, 496 (E.D. Pa.), aff'd, 943 F. Supp. 501 (E.D. Pa. 1996). The deliberative process privilege
protects information that is deliberative, i.e., related to the decision-making process, and
predecisional. Abdelfattah v. United States Dep't of Homeland Sec., 488 F.3d 178, 183 (3d Cir.
2007).
The Court conducts a two-step review: “First, the court must decide whether the
communications are in fact privileged. The government has the burden of showing privilege at
this first step.” Scott Paper Co., 943 F. Supp. at 496. “Because the privilege does not protect all
communications made by government officials, the court must initially determine whether the
material the government seeks to protect comprises part of a process by which a government
agency formed a decision or policy.” Delaware Riverkeeper Network v. Delaware River Basin
Comm'n, 300 F.R.D. 207, 211 (D.N.J. 2014).

“Second, the court must balance the parties' interests. At this second step, the party
seeking discovery bears the burden of showing that its need for the documents outweighs
the government's interests.” Scott Paper Co., 943 F. Supp. at 496. (citation omitted). “Other
factors to consider are: (1) the relevance of the evidence sought to be protected; (2) the
availability of other evidence; (3) the seriousness of the litigation and the issues involved; (4) the
role of the government in the litigation; and (5) the possibility of future timidity
by government employees who will be forced to recognize that their secrets are violable.” Id.
(citing Redland Soccer Club, 55 F.3d at 854).
After conducting this balancing test, the Court determines the application of the privilege,
not the agency. Chisler v. Johnston, 796 F. Supp. 2d 632, 640 (W.D. Pa. 2011).

1. WHISARD Case Summary – DOL000422
Defendants claim that portions of this document prepared by Investigator Vannhi
LaVanture4 were redacted for “no discernable reason.” ECF No. 46-2 at 12. Defendants assert
that they need this information to properly depose Investigator LaVanture. Id. at 16. Defendants
add that the “evidence sought is relevant to Defendants’ ability to challenge the DOL’s legal
basis for its claims and the accuracy of its damages estimate.” ECF No. 49 at 15. The DOL
contends that this is an internal form used by the agency during investigations and is created both

4 The DOL mentions that Investigator Vannhi Tran is now Vannhi LaVanture. ECF No. 48 at 9. For the sake of clarity,
this Memorandum will refer to this individual as Investigator LaVanture and instructs all parties to use the last
name LaVanture moving forward.
at the outset of the investigation and as part of the decision-making process. ECF No. 48 at 11.
The DOL also contends that some of this information is protected by the government informant
privilege. Id.
The Court is satisfied by the representations made in the Principal Deputy Administrator

for the Wage and Hour Division’s Declaration that the redacted portions contain pre-decisional
opinions, deliberations, and/or recommendations prepared by Investigator LaVanture and
submitted to supervisors and attorneys as part of the process of the decision-making. ECF No.
48-1. Without any identified, specific need for the WHISARD Case Registration form, it is
unclear to the Court why the redacted information in this document is necessary for Defendants
to prepare their claims and defenses in this case. Even so, Defendants have all the underlying
factual information necessary to determine both the legality of their pay practices and possible
damages within their possession. It is surprising that Defendants claim this information is “not
available from any other source.” ECF No. 49 at 15. Defendants’ pay practice is relatively
straightforward and Defendants are in position to review and evaluate their own employee pay

records. The protection of this privilege (and the government informant privilege) and the
possibility that disclosing an internal investigatory document begun at the outset of an
investigation could affect how an agency conducts itself internally during the pre-decisional
stage of a matter greatly outweighs the potential relevance of this document to Defendants.5

5 Defendants contend for the first time in their Reply that the DOL’s interests could be protected by protective
order. ECF No. 49 at 15. Defendants could have suggested this in the Motion but chose not to raise it until the
Reply. The Court does not find a protective order sufficient to protect the DOL’s interests in non-disclosure, nor
does it find these materials to be necessary or the underlying factual information unavailable elsewhere and thus
has no reason to order disclosure and a protective order.
2. Case Diary Entries – DOL000002-21
Defendants claim that the diary entries from Investigator LaVanture and other DOL
agents contain redacted facts that are relevant to this case and have no basis for privilege. ECF
No. 46-2 at 12. Defendants assert that they need this information to properly depose Investigator

LaVanture. Id. at 16. The DOL contends that these entries are like attorney time records for the
employees conducting the investigation and contain information that reveals the methodologies
and deliberations of the investigation. ECF No. 48 at 10. Furthermore, the DOL asserts that all
documents within the investigator’s possession were produced. Id. at 11.
Investigator LaVanture’s opinions, recommendations, and observations from the
investigation, as well as the methodology of the investigation, are all protected by the
deliberative process privilege. In addition, the information Investigator LaVanture possessed as
part of the investigation was produced to Defendants. While the factual information underlying
the investigation is not protected, the DOL has already produced such information to Defendants.
There is no justification given for why the notes made by Investigator LaVanture in the Case

Diary Entries are somehow more relevant or more necessary than the underlying documents that
are currently available to Defendants to prove their pay practices are lawful or to calculate
damages.
3. Documents Withheld Entirely
Defendants claim that certain withheld documents may have factual material that is
severable but they cannot make an adequate challenge as the DOL has not provided precise and
certain reasons for asserting the privilege. ECF No. 46-2 at 13.
As the Court is satisfied that the DOL properly invoked both the government informant
privilege and the deliberative process privilege, the burden rests on Defendants to assert that this
material is essential to fundamental fairness. Defendants make no attempt to identify how this
information is relevant, necessary or otherwise should be produced. Without any reasons
presented to outweigh the privilege, the Court will not order these documents be produced.
4. The FLSA Narrative – DOL000075-83

Defendants claim that the FLSA narrative was not pre-decisional and thus redacted
information within the Narrative should be produced. ECF No. 46-2 at 14. Defendants assert that
they need this information to properly depose Investigator LaVanture. Id. at 16. The DOL
describes this document as including Investigator LaVanture’s fact summaries from the
investigation, as well as the investigator’s impressions, recommendations, and pre-decisional
opinions about Defendants’ procedures. ECF No. 48 at 9. The DOL asserts that it has produced
all factual information in the Narrative, apart from identities of informants and facts that are
intertwined with deliberative material. Id.
A document is pre-decisional if it “concern[s] an anticipated agency decision and ha[s]
been generated prior to the actual decision being reached[.]” Delaware Riverkeeper Network v.

Delaware River Basin Comm'n, 300 F.R.D. 207, 211 (D.N.J. 2014) (quoting United States v.
Pechiney Plastics Packaging, Inc., 2013 WL 1163514, at *13 (D.N.J. March 19, 2013)). Agency
investigator reports are well-within the scope of the privilege, even if the investigator’s
impressions or opinions include fact application. See Acosta v. Fairmount Foundry, Inc., 2019
WL 196543, at *4 (E.D. Pa. Jan. 14, 2019). The Court is satisfied by the representations made in
the Principal Deputy Administrator for the Wage and Hour Division’s Declaration that the
redacted portions contain pre-decisional opinions, deliberations, and recommendations prepared
by Investigator LaVanture and submitted to supervisors and attorneys as part of the process of
decision-making. ECF No. 48-1.
Having satisfied the first step of the Court’s review, the burden shifts to Defendants to
show how this information is necessary for fairness. Defendants do not explain how this
evidence is relevant to the defense of their pay practices or in calculating damages. Presumably,
most, if not all, documents reviewed by the investigator would have been obtained from

Defendants and, therefore, are available elsewhere. The DOL has also produced portions of the
FLSA Narrative and only redacted sections that include pre-decisional observations and facts
that could not be severed from the protected material. The other factors are neutral, if not leaning
towards maintaining the privilege. Thus, the Court will maintain the redactions on the FLSA
Narrative.
V. CONCLUSION
For the reasons stated above, Defendants’ Motion to Compel is denied.

BY THE COURT:

/s/ Chad F. Kenney
____________________________
CHAD F. KENNEY, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10403903. Public record. Not legal advice.